Webster v. Rhodes

• Decision Date: 07 November 1910
• Citation: 49 Colo. 203,112 P. 324
• Parties: WEBSTER v. RHODES.
• Court: Colorado Supreme Court

112 P. 324

49 Colo. 203

WEBSTER v. RHODES.

Supreme Court of Colorado

November 7, 1910

Error to District Court, Larimer County; James E. Garrigues, Judge.

Action by L. R. Rhodes against Samuel F. Webster. From a judgment for plaintiff, defendant brings error. Affirmed.

Thomas J. Leftwich, Newton W. Crose, and William B. Lymer, for plaintiff in error.

L. R Rhodes, pro se.

CAMPBELL C.J.

Plaintiff Rhodes, who is an attorney at law, brought this action to recover from defendant Webster for professional services rendered. The first cause of action in the complaint in substance alleges that defendant employed plaintiff to bring an action in the district court to recover money which defendant claimed was due him, and to defend an action, if such should be brought against defendant by one Harris, and for such services it was agreed that plaintiff should receive $150, if successful in such litigation; that in pursuance of the employment plaintiff brought the suit and made the necessary preparations for defending the anticipated action by Harris. After such suit in behalf of the defendant was brought, a compromise of the same was made by defendant in this, and defendants in that, action, and a settlement was also made between this defendant and Harris of the controversy between them. All of these matters were adjusted to defendant's satisfaction; he getting all of his claims and demands that he would have received had the suit been conducted to a successful termination. The second cause of action sets up the same employment, the rendering of the same service to the satisfaction of defendant, and that the value thereof is $150. Defendant, by his answer, while admitting the employment, denies that the contract set up in the first cause of action was performed as alleged, and denies the value of the services alleged in the second cause. By way of counterclaim, he sought to recover damages from plaintiff on account of negligence and unskillful professional conduct by plaintiff in other unconnected transactions. Upon the hearing, and at the close of the evidence, the court withdrew from consideration of the jury the counterclaim and directed them to return a verdict for plaintiff in the sum of $150.

We think this judgment was right. There is no substantial controversy as to the material facts. The employment is admitted. That plaintiff brought the suit contemplated by the contract and stood ready to defend the anticipated suit of Harris are also admitted. The defendant by his own act compromised the subject-matter of the litigation included in the suit which was instituted and thereby received everything that he would have got had the suit been successfully prosecuted by plaintiff. Indeed the evidence is that defendant received, as a result of the compromise, more than he would have obtained had the suit been prosecuted to a successful termination. As no suit was brought by Harris against this defendant, and as plaintiff stood ready at all times to defend the suit had it been brought, the contract as to that part was unquestionably performed. But defendant argues that the receipt by him, as the result of a compromise which he himself effected, under the advice and with the assistance of plaintiff, of all that he would have secured had the litigation resulted in his favor, is not the same as if that litigation had been successfully prosecuted in court; that the contract must be proved as specifically alleged to entitle plaintiff to recover; that when, with plaintiff's consent, the compromise was effected after the suit was brought, this was an abrogation of the contract, and plaintiff must recover, if at all, for his services upon a quantum meruit. To this proposition is cited Harris v. Root, 28 Mont. 159, 72 P. 429; and Coram v. Ingersoll, 148 F. 169, 78 C.C.A. 303. If the contract involved in the Root Case be, as defendant says, in principle the same as that in the case in hand, the decision by the Supreme Court of Montana would seem to uphold defendant's...